The Pennsylvania Department of Environmental Protection has been withholding information about water contamination related to natural gas drilling in the Marcellus and Utica Shale formations, according to the sworn testimony of a DEP employee.

Read the full deposition at the bottom of this post.

Taru Upadhyay, director of the DEP’s Bureau of Laboratories, testified that although the DEP’s laboratory tests for a full range of heavy metals, the lab does not report all of the test results back to the field office, or the resident. The heavy metals left out of one particular report back to a resident of Washington County included cobalt, silicon, tin, titanium, zinc, boron, silicon, aluminum, copper, nickel, lithium, and molybdenum.

The deposition relates to a lawsuit filed against the Department of Environmental Protection in Washington County, Kiskadden v. DEP, and was taken by attorney Kendra Smith back in September. Smith wrote to DEP Secretary Michael Krancer on Thursday, informing him the DEP’s Oil and Gas Division has procedures in place that purposely remove from lab reports water contaminants for certain heavy metals.

“Testimony of Ms. Taru Upadhyay was quite alarming. As the Technical Director of PA DEP Bureau of Laboratories she revealed what can only be characterized as a deliberate procedure by the PA DEP Oil & Gas Division and the PA DEP Bureau of Laboratories to withhold critical water testing results.”

Upadhyay also testified that the DEP’s lab uses EPA approved protocols. In her letter to Secretary Krancer, Kendra Smith says the metals found in her client’s water tests, but not reported to her client, are metals associated with oil and gas flowback and produced water, also called frack water. Smith points to a study conducted with the input of the DEP, which lists aluminum, boron, cadmium, chromium, copper, lead, lithium, molybdenum, nickel, strontium, thallium, tin, titanium and zinc as heavy metals found in flowback water from oil and gas drilling operations. Smith goes on to list documented health impacts of these metals.

Both the letter and the deposition were released by state Rep. Jesse White.

Kevin Sunday, a spokesman for the Department of Environmental Protection, would not answer questions over the phone, but instead sent a written statement to StateImpact.

“It is clear to any fair minded person that this letter, which we received only yesterday and are reviewing, is an effort by a plaintiffs’ attorney to mislead and manipulate news coverage in an effort to litigate his cases in the press instead of the courtroom. This lawyer misrepresents the deposition transcripts by selective quotation and the lawyer either misunderstands how a laboratory functions or is intentionally misrepresenting how one does. These deposition transcripts haven’t even been reviewed for accuracy in transcription by the witnesses yet, which is standard practice.”

Read DEP’s full initial response below.

The Pittsburgh Post-Gazette reported that State Rep. Jesse White, a Democrat from Washington County, has called for a criminal investigation of DEP, citing mismanagement and fraud.

“Someone in law enforcement, be it the criminal unit of the EPA, the U.S. Attorney’s office, the Attorney General’s office,” Rep. White told StateImpact Pennsylvania, “needs to go in there, seize the computers and let’s see what’s really going on.”

Pennsylvania’s Office of Attorney General does have an environmental division, but it doesn’t initiate an investigation without the participation and consent of the DEP. The AG could also investigate if requested by a county District Attorney. If the EPA were to get involved, they would work with the U.S. Attorney’s office in the area where the water contamination occurred, which in this case would be the western Pennsylvania division.

DEP Secretary Michael Krancer later responded to White’s allegations in a letter. Krancer says the information left out of the referenced lab reports were not relevant to determining whether or not the contamination had a link to gas drilling. And he says, the levels of the listed contaminants were not high enough to pose a health risk. Krancer also says the protocol followed by the DEP in this case is consistent with practices in other states, including New York, Colorado, Wyoming and Ohio.

Within the last two years, the DEP has received at least 128 complaints from Washington County residents related to water contamination the residents believed was related to shale gas drilling. DEP investigations concluded that no impact was found in 58 of those cases. Twenty-seven investigations did reveal water impacts from drilling, and two of those were addressed through enforcement. DEP says 25 were resolved between the resident and the driller. As of the end of August, 43 DEP investigations in Washington County continued.

“They could have 100 different (contaminants) from an analysis, but they’re going to report what’s related to what they’re trying to investigate,” said David Yoxtheimer, a hydrogeologist at Penn State’s Marcellus Center for Outreach and Research told the Tribune-Review. “That’s pretty much standard industry practice.”

But in the case of potential Marcellus contamination, and the emotions surrounding it, some say industry practice needs to change. Former DEP secretary John Hanger tells The Associated Press that while the policy may have been developed in good faith years ago, it should be changed “immediately” to provide people with all the test information possible on water contamination, whether it’s related to drilling or not.

Dr. Carl Werntz is an occupational and environmental health expert who practices at West Virginia University. Werntz tells StateImpact Pennsylvania that some of the chemicals listed by attorney Kendra Smith as deliberately left out of lab reports do often occur naturally in small amounts. But Werntz says as a practicing physician, more disclosure is better than less.

“The more information I’m provided, the better I am at being able to asses the risk and address the health concerns of people who are exposed to Marcellus activities,” says Werntz. “I think that sharing more information will allow people to make better decisions than less information.”

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Comments

DEP is right on the money with this. When investigating someone’s accusation of gas drilling contamination, their protocol is to go and determine if, in fact, that’s the case.

It’s not necessary to test for all of those other heavy metals. This analogy is somewhat crude, but imagine a scientist/regulator trying to determine if a house is on fire. They could test for the presence of carbon monoxide in the air. They could monitor oxygen levels. They could take readings on the convection of the air around the house. All of those things could be used to support a determination of whether a house is on fire.

Do we really need to do that? Of course not. There’s massive orange flames, searing heat, and billowing smoke to tell us that the house is on fire. Sodium, calcium, strontium, and magnesium are the flames, heat, and smoke. If someone called the fire department and they came out and said “nope, the house is not on fire” because of the lack of the flames, heat, and smoke, would we be saying they are suppressing evidence if they don’t test the air for carbon monoxide? Of course not.

That being said, some of those metals have associated health issues. If DEP is obtaining results on those metals as a byproduct of its search for other metals and they see something of note, common sense would say that the landowner should be informed. Apparently right now they only look at those specific results that they ordered. I’d suggest that would be a wonderful loophole that Rep White, in his capacity as a legislator, could work to close. But it could certainly be done without the baseless, misleading, politically-motivated accusations which are very conveniently released just days before the election.

Rep White has been bragging on his facebook page for the last month that he’s got a “smoking gun” that’s going to blow the lid off of the DEP, which just so happens to be right around the time this deposition was given to the law firm. The firm which also represents the municipalities in Rep White’s district challenging Act 13. Coincidence?

DeanMarshall

You are at least as incredible liar as DEP top Brass, albeit less accomplished Mr. Knapp!
You spread dis-information like a Dairy Farmer spreads manure in hopes of making points with the actual power players of Big Oil and Gas. Are so ignorant you don’t realize nobody buys your Bull?

http://www.facebook.com/profile.php?id=504930140 Mike Knapp

Please take a look at this paper put out by Cornell’s Water Research Institute. It’s a guide for folks like yourself to be able to protect themselves by doing their own testing prior to drilling, specifically what you NEED to test for. It also includes the recommendations of other groups, including PA DEP, NY DEC, Penn State, and the National Ground Water Association.

Notably absent: All of the heavy metals that are in question. So think what you want of me, but I’m not just making things up here.

Something else Mr. Knapp no doubt knows: testing for all of the chemicals used in fracking is both VERY expensive–not something most homeowners can afford, and it is VERY difficult since many of these chemicals and heavy metals are protected by proprietary rights laws. So, this is nothing more than disingenuous posturing as the good guy.

http://www.facebook.com/profile.php?id=504930140 Mike Knapp

Um, the heavy metals are not put in by the drilling companies. They are picked up in the formation. Are you kidding me Wendy?

http://www.facebook.com/bucks.sierrans Bucks Committe Sierrans

There is no such thing as heavy metals, there are toxic metal elements, but the term heavy metals means nothing according to IUPAC (sorry its a chemist thing) http://iupac.org/publications/…

Wendy Lynne Lee

Didn’t say that Mr. Knapp. But they’re in the FLOWBACK, and hence in the water samples concealed by DEP. As you well know. YOU are the big kidder–but you’re not very funny.

DeanMarshall

Mike Knapp is involved in a Penny-ante Drilling concern in Western Pa, and hopes to make it in the “Big League” of Horizontal Hydrofracking Thru Lies and deception in support of his Mentors. He, Like DEP, ANGA, MSC, and EID have livelyhoods dependant on keeping the truth from the populace as long as possible. When the Pipelines are laid criss-crossing our once beautiful Landscape and it is blighted by poison spewing Compressor Stations and Cracker Plants it will be too late to call them on their immoral Lies. By then they will have in place the infrastructure to deliver Marcellus, Utica and other Shale Gas to the LNG Terminals and Ships the Big Players are building to EXPORT and Profiteer on our “Sacrifice Zones”, AKA destroyed Habitat, Cancer Clusters, and Superfund Waste Sites!

Wendy Lynne Lee

Let me dissect this point by point, Mr. Knapp, so that there’s no confusion about how utterly absurd is your defense of the deeply corrupted and demonstrably corporatized DEP, and so that I can use you–as you have invited–as an example of just how corrupted in your industry.

1. It is manifestly false that DEP follows their own protocol. As is clear in case after case, DEP does not “go and determine” unless forced by sheer volume of phone call to do so. When Dean marshall and I filmed and photographed what was obviously a bentonite spill–and reported as such–in Loyalsock Creek, DEP not only dragged their feet for days on any investigation, they followed MIchael Krancer’s–EXECUTIVE and LAWYER for EXELON and master craftsman of EZ-FRACK–insistence that nothing be done and that families potentially swimming only a mile down stream at World’s End State Park not be notified of the potential hazard. Moreover, when I reported the possibility of asbestos exposure for both remaining residents and demolition crews at Riverdale in June of this past year, DEP performed the most cursory of investigations, dragged their feet for weeks, did nothing other than “advise” the demolition company–Alan K. Myers–of asbestos removal protocol, and when the DEP representative, Andrea Ryder, did finally return my phone call in late July, her response to the possibility of asbestos violations during demolitions was that the DEP saw these like “seat belt violations,” that the DEP had excellent relations with oil and gas developers in Pennsylvania, and that the DEP’s primary mission wasn’t to penalize, but to educate. She encouraged me to see the possibility of asbestos exposure as no harm, no foul, that is, since the cursory DEP inspection didn’t find evidence of friable asbestos, and since even if they had DEP knows the industry will find a way to blame the exposure on the resident’s dismantling of their mobile homes during the FORCEABLE evictions by Aqua America/PVR, well, what can DEP do? Moreover, while she insisted that Alan K. Myers was informed that demolition must stop while the inspections were carried out, it did NOT. I continued to photo-document this FACT. DEP did NOTHING.

2. Your analogy to a house fire is manifestly absurd. When a house is on fire, you can SEE it. When your water is contaminated, you may very well have no obvious evidence–at LEAST of the specific contaminant. THAT IS PRECISELY WHY YOU NEED TO DO THE TESTING. When firefighters go into a burning ouse, they aren’t there to TEST for anything. They’re there to put out the fire. NO one has to determine whether a house is on fire; we indeed DO have to determine by testing whether there are heavy metals in water. It is patently clear what DEP is up to: concealing evidence of the presence of heavy FRACKING metals and chemicals in water samples. Combined with recent decisions to make Kracer and Perry the determinants with respect to letters to homeowners about possible contamination of wells, combined with ACT 13′s gag order on physicians, combined with the cauterizing of public hearings on smaller compressor station permit hearings, combined with EZ-Frack, combined with the suspicious resignations of anyone who might prove to be a whistleblower, what’s clear is that the Corbett administration–a fully corporatized annex of the oils and gas industry–is making sure that every avenue of resistance to the industrialization of PA is closed.

3. It’s irrelevant whether DEP’s deliberate omissions are relevant to the municipalities challenging Act 13. The facts are the facts. And they paint a VERY dark picture of a VERY corrupted DEP– DEPARTMENT OF (BIG) ENERGY PROTECTION.

DeanMarshall

I have been lied to on at least four separate occasions by DEP Staff, including Scott Perry.( Director of Oil and Gas Mgt.). They protect the Industry that bought Corbetts Election and Tom Corbett installed them in the key DEP positions.

http://www.facebook.com/jessewhite46 Jesse White

For the record, Mr. Knapp is employed in the natural gas industry. He somehow forgot to mention that part.

http://www.facebook.com/profile.php?id=504930140 Mike Knapp

And Rep White is “good friends” with John Smith, the attorney who is suing in this case, and who stands to make a huge windfall if they can force the gas company to settle. Rep White somehow forgot to mention that part:

DEP is falling back on EPA protocols an excuse for incomplete reporting? Now that’s a laugh, considering how adversarial Krancer is towards the Feds. Even if what the are doing isn’t a crime, technically, it’s a moral outrage.

http://www.facebook.com/bucks.sierrans Bucks Committe Sierrans

First as a chemist there is no such thing as heavy metals, there are toxic metal elements, but the term heavy metals means nothing according to IUPAC (sorry its a chemist thing) http://iupac.org/publications/pac/75/9/1357/

Wendy Lynne Lee

Dear Dave Meiser (Bucks Committee Sierrans),

While I appreciate your knowledge as a chemist, and I gather you’re laying this out in defense of DEP’s position, this is largely beside the point. The point is that no matter what the chemical composition is, no matter what the concentration, no matter what we call it–and several of the SCIENTISTS relevant here are using the words “heavy metals,” as is commonplace even if not precisely correct–folks have a RIGHT to know what’s in their water. This is a gross violation of a fundamental right to be able to trust an agency of an ELECTED government in a DEMOCRACY. DEP violates this trust repeatedly and excessively–and in so doing has endangered the public health, the rights of property owners, and the public trust. Krancer and Perry should be investigated, and tried for corruption.

I don’t know that your aims are to defend DEP, but this is what anyone reading your post would assume. Please clarify.

http://www.facebook.com/bucks.sierrans Bucks Committe Sierrans

As a chemist who has worked in toxicology, I want to give
the current knowledge of the maximum daily intake for the elements listed in
this article. This is based upon current
studies and tests.

Note that certain elements may have different toxicity
depending on the valance state of the element,
for example Chromium in the valance state 6 is extremely hazardous
(commonly called hexavalent chromium) other valance states of chromium are less
toxic

This data is based on the elemental toxicity or the element’s
common environmental compounds and is expressed in mass of intake/kg of body
weight/day of a healthy individual.

Cobalt: MINIMAL
RISK LEVELS (oral) is the MRL of 0.01 mg Co/kg/day

Silicon intake levels
have not been established

Tin tolerable daily
intake (TDI) of 0.2 mg/kg-day

Titanium 3 mg/kg-day
based on no adverse effects observed

Zinc TDI of 0.3

Boron TDI 0.2
mg/kg-day

Aluminum TDI 1
mg/kg-day

Copper intermediate-duration
MRL of 0.01 mg copper/kg-day

Nickel, TDI. 12 µg/kg of body weight

Lithium TDI 0.02 mg/kg-day

Molybdenum TDI 0.01
mg/kg-day

Cadmium maximum intake
of 60 µg/day (The EPA has set a limit of 5 parts per billion in drinking
water)

Chromium III TDI 1.5
mg Cr(III)/kg/day

Chromium VI TDI
0.005 mg/kg-day (The EPA has set a limit of 100 parts per billion in
drinking water, which some studies suggest that this limit is too high
and should be around 10 PPB)

Lead TDI 3.6
µg /kg-day for developmental and
central nervous system effects (the EPA has set a limit of zero parts per billion in drinking water)

Strontium TDI 0.6 mg/kg-day

Thallium NOAEL (no observed adverse effect level)
of 0.004 mg/kg-day

This list is
based upon several databases but most of the information is contained in ITER
(International Toxicity Estimates of Risk) is a free Internet database of human
health risk values for over 680 chemicals of environmental concern from several
organizations worldwide

http://www.facebook.com/bucks.sierrans Bucks Committe Sierrans

the last thing I want to add is that the current technology for testing of metallic elements can be performed by an analytical laboratory using extremely sensitive instruments. the state of the art testing is by using an inductively coupled plasma mass spectrometer (ICP/MS) or inductively coupled plasma atomic absorption these instrumens can routinely screen for most metal elements down to the parts per billion levels and depending on the element in question can routinely detect levels of parts per trillion.

But these are $100,000 instruments and requires personnel to have the training on the techniques necessary to prepare the samples for analysis as well as operate and maintain the instrument and interpret the data generated.

John Slesinger

I have been the recipent of the inept, corrupt DEP. I have heard form others and I believe that the Southwestern Office under the direction of Alan Eichler is the worst of the worst. In my case they signed off on faulty cementing of a casing and then claimed there was no proof that my water was contaminated from a nearby gas well. They, the DEP had the documents the whole time. Interesting too that George Jukovich from the southwestern office of the DEP who wrote me letters claiming that the DEP had no proof in my case, now is on the other side working for Penn Future. If the DEP gets investigated for real they should all end up behind bars. Follow the money

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About StateImpact Pennsylvania

StateImpact Pennsylvania is a collaboration between WITF and WHYY. Reporters Marie Cusick and Susan Phillips cover the fiscal and environmental impact of Pennsylvania’s booming energy economy, with a focus on Marcellus Shale drilling. Read their reports on this site, and hear them on public radio stations across Pennsylvania. This collaborative project is funded, in part, through grants from the Heinz Endowments and William Penn Foundation.